Kenya Judgment

High Court · High Court at Garsen

Bashir Abdalla v Peter Luganje Karisa [2021] KEHC 6171 (KLR)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The High Court found that the preliminary objection regarding jurisdiction had already been conclusively determined by the lower court in its ruling. Applying the doctrine of res judicata under section 7 of the Civil Procedure Act, the court held that it could not revisit or alter a judgment that had already been signed and delivered, except under the limited circumstances provided for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. As such, the court lacked jurisdiction to entertain the appellant's request to reconsider the matter, and the application was denied.

Court disposition

Application denied for want of jurisdiction; preliminary objection deemed conclusively determined.

Orders

  • The request to revisit or alter the judgment is denied.

02

Material facts

Parties

Bashir Abdalla

Appellant Counsel: Kokul, Fozah & Partners

Peter Luganje Karisa

Respondent Counsel: Wambua Kilonzo & Co. Advocates

03

Procedural history

  1. Posture

    Civil Appeal / Ruling on Preliminary Objection and Jurisdiction

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant sought relief contending that the preliminary objection as to jurisdiction had not been addressed by the lower court, and requested the High Court to consider the matter afresh.
Respondent
The respondent argued that the preliminary objection was conclusively determined in the lower court's ruling, and that the High Court lacks jurisdiction to revisit or alter a judgment already signed and delivered except as provided for under review jurisdiction.

05

Court’s reasoning

  1. 01

    Order 21 of the Civil Procedure Rules; section 80 of the Civil Procedure Act; Order 45 rule 1 of the Civil Procedure Rules

    A court which has signed its judgment and final order disposing of a case shall not alter or review it except as provided for under review jurisdiction.

  2. 02

    Section 7 of the Civil Procedure Act

    Matters that have been conclusively determined are res judicata and cannot be reopened.

06

Ratio, limits and disposition

Ratio decidendi

The High Court found that the preliminary objection regarding jurisdiction had already been conclusively determined by the lower court in its ruling. Applying the doctrine of res judicata under section 7 of the Civil Procedure Act, the court held that it could not revisit or alter a judgment that had already been signed and delivered, except under the limited circumstances provided for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. As such, the court lacked jurisdiction to entertain the appellant's request to reconsider the matter, and the application was denied.

Obiter and limits

  • The court noted that due to Covid-19 restrictions, the ruling was delivered online, waiving the requirements of Order 21 [1] of the Civil Procedure Rules.

Court disposition

Application denied for want of jurisdiction; preliminary objection deemed conclusively determined.

  • The request to revisit or alter the judgment is denied.

Source and reliance status

High Court

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Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2021] KEHC 6171 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARSEN

CIVIL APPEAL NO. E001 OF 2020

BASHIR ABDALLA............................................APPELLANT

VERSUS

PETER LUGANJE KARISA..............................RESPONDENT

(Being an appeal from the Ruling of Hon. E.Kadima - Senior Resident Magistrate

Court at Garsen dated and signed and delivered on the 10th August, 2020 in PMCC No. 33 of 2019)

Coram: Hon. Justice R. Nyakundi

Kokul, Fozah & Partners for the Appellant

Wambua Kilonzo & Co. Advocates for the respondent

R U L I N G

Once again Learned Counsel Mr Wambua for the Respondent in the applications filed by the intended appellant contends that the preliminary objection as to jurisdiction was never addressed by the Court. The Respondent’s Counsel points out that notwithstanding the Court’s power to grant the relief sought by the Appellant there was no determination on the issues contained in the preliminary objection. Following the grievance by the Learned Counsel, I took the liberty to peruse the record and the impugned Ruling dated 15th December, 2020. In the proceedings together with the Ruling under review the objection so raised was conclusively determined.

Keeping the principles as laid down under section 7 of the Civil Procedure Act the concerns, raised by Counsel viewed from either angle is in all practical intents and purposes res judicata.Therefore looking at Order 21 of the Civil Procedure Rules no court which has signed its judgement and final order disposing over a case shall alter save otherwise under review jurisdiction as expressly provided for under section 80 of the Civil Procedure Act and under Order 45 rule 1 of the Civil Procedure Rules. At this stage the Court has no jurisdiction to look into the matter afresh. The request is therefore respectively denied.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 16TH DAY JUNE, 2021.

..........................

R. NYAKUNDI

JUDGE

NB:In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this ruling has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.

(wambuakilonzo@gmail.com,legal@kfpartners.co.ke)

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Civil Procedure Act section 7

Legislation

Legislation referenced in the available case record.

Civil Procedure Act section 80

Legislation

Legislation referenced in the available case record.

Civil Procedure Rules Order 21

Legislation

Legislation referenced in the available case record.

Civil Procedure Rules Order 45 rule 1

Legislation

Legislation referenced in the available case record.

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